Employment Tribunal Rejects Race Discrimination Claims Against Union

OUTCOME: Dismissed

[NAME_1] No: 2404995/2022

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

On: 29-31 January 2025

Before: Judge Serr, [NAME_5], [NAME_6] Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

1. The allegations of direct race discrimination all fail and are dismissed.

2. The allegations of harassment related to race all fail and are dismissed.

3. The allegations of victimisation all fail and are dismissed.

REASONS

The Claim 1. By a Claim form initially presented on 29 June 2022 the Claimant brings various claims against the Respondent- [COMPANY_3] Those claims for direct discrimination, victimisation and harassment are brought as a member of that Union pursuant to s.57 EqA 2010.

The Issues

2. As will be seen the claims relate to advice and assistance that the Claimant sought from the Union following her removal from her employers premises on 11/3/22. Her employer was [COMPANY_4] (“the [COMPANY_4]”) where she was employed as a trainee [COMPANY_4] lecturer. The claims cover a narrow compass of time- essentially from 14 March 2022 when she first made contact with the [NAME_3] to on or around 8/4/22. The purpose of contacting the Union was for advice and assistance in respect of the removal from her employment.

[NAME_1] No: 2404995/2022

3. The issues were identified at a previous Preliminary Hearing ([NAME_8]) conducted by EJ Callan on 13 May 2024. They are as follows (using EJ Callan’s numbering) limited at this stage to liability :

Direct race discrimination about the following: 42.0.1 [NAME_10] assisted the [COMPANY_4] by misrepresenting the dismissal and thereby failing to identify the [COMPANY_4]’s discriminatory acts; 42.0.2 [NAME_9] diminishing the [COMPANY_4]’s discriminatory behaviour by the [COMPANY_4] in dismissing the claimant; 42.0.3 Doing nothing about the [COMPANY_4] refusing to provide CCTV recordings requested in a SAR made by [NAME_9] on the claimant’s behalf. 42.1 Harassment in respect of the following: 42.1.1 [NAME_9] and [NAME_11] giving the claimant advice which did not accurately reflect the claimant’s situation. 42.1.2 Treatment by [NAME_11] in stating the respondent would not advise her further if she was taking legal advice elsewhere. 42.2 Victimisation in respect of the following: 42.2.1 [NAME_9] and [NAME_11] giving the claimant advice which did not accurately reflect the claimant’s situation. 42.2.2 [NAME_11]’s unwillingness to assist the claimant in her SAR In his email of 6 April 2022. 42.2.3 [NAME_9]’s treatment of the claimant by declining to assist her further with her SAR as expressed in an email of 8 April 2022.

1. Direct race discrimination (Equality Act 2010 section 13) 1.1 Did the respondent do the following things set out in paragraphs 42.0.1- 42.0.3 above? 1.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were. 1.3 If so, was it because of race? 1.4 Did the respondent’s treatment amount to a detriment?

2. Harassment related to race (Equality Act 2010 section 26) 2.1 Did the respondent do the things set out in paragraphs 42.1.1 and 42.1.2 above? 2.2 If so, was that unwanted conduct?

[NAME_1] No: 2404995/2022 2.3 Did it relate to race? 2.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 2.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the [NAME_1] and whether it is reasonable for the conduct to have that effect.

3. Victimisation (Equality Act 2010 section 27) 3.1 Did the claimant do a protected act as follows: 3.1.1 [NAME_9] in a telephone conversation on 14 March 2022 that her Manager, [NAME_13], had discriminated against her by dismissing her. 3.2 Did the respondent do the things set out in paragraphs 42.2.1 to 42.2.2 above? 3.3 By doing so, did it subject the claimant to detriment 3.4 If so, was it because the claimant did a protected act? 3.5 Was it because the respondent believed the claimant had done, or might do, a protected act?

Procedure 4. There were a number of procedural problems at the outset of the hearing. The Claimant, who represented herself, had been of a fixed mindset that the present [NAME_1] could not proceed until the conclusion of the claim against the [COMPANY_4] for discrimination arising out of her dismissal. Previous Judges had rightly taken the view that the 2 cases were separate and distinct. In fact, the Tribunal claim against the [COMPANY_4] had concluded in 2024 but the Claimant was appealing to the EAT. The Claimant had refused to exchange witness statements with the Respondent at the date they were due according to the [NAME_8] orders which was 25 November 2024. By a letter dated 15/1/25 EJ Slater confirmed her refusal to postpone this [NAME_1] stating that the Claimant provided no cogent reasons why the [NAME_1] cannot fairly go ahead until the final determination of appeals against the judgment in the [NAME_1] against the [COMPANY_4]. The EJ stated “It is a matter for you as to whether you choose not to provide a witness statement but, if you fail to do so, possible consequences could be that you could be prevented from giving evidence in support of your claim or your claim could be struck out”.

5. The Respondent eventually sent the Claimant its witness statements on Thursday 23/1/25 without receiving any from the Claimant. On 26/1/25 the Claimant wrote to the Tribunal indicating she would be only available to attend on day 1 of the hearing and not for days 2 and 3. She provided a document dated 26/1/25 which attaches a statement of truth but is largely directed towards seeking an adjournment on the same basis, that the [COMPANY_4] claim must be concluded first.

6. At the start of the hearing the Claimant no longer sought to adjourn the whole hearing but wished to adjourn days 2-3 and complete the hearing on another occasion. The Tribunal refused. The claim dated back to 2022, the hearing had been listed as long ago as May 2024 at the [NAME_8], the reason for the non-attendance was not substantial, being related to generalised commitments and the witnesses on the Respondent’s side, who had had serious allegations of discrimination

[NAME_1] No: 2404995/2022 hanging over them for 3 years were present and ready to attend. The Claimant was told should she not attend, the claim would continue in her absence under Rule 47.

7. The absence of a witness statement from the Claimant was rectified by treating the claim form and a long recitation of the facts contained in a [NAME_1] management agenda provided by the Claimant ahead of the [NAME_8] in May 2024 as her evidence. [NAME_7], Counsel for the Respondent, very fairly did not object to this course.

8. The [NAME_1] accordingly proceeded with the Tribunal being provided a 514 page bundle which both parties had by the start of the hearing. There were also 2 witness statements from the Respondent’s witnesses [NAME_11] and [NAME_9]. The Claimant did not attend on the second and third day of the hearing as she indicated, and the [NAME_1] proceeded in her absence. Both she and the Respondent’s counsel however provided written closing submissions which the Tribunal considered with care.

The Facts 9. The Tribunal made the necessary following findings of fact.

10. The Claimant was employed by the [COMPANY_4] as a trainee lecturer from August 2021. She appears also to have been undertaking a PGCE qualification alongside her employment at the same time. She was a member of the Respondent from December 2021 until late April 2022. She self identifies as black British.

11. The Respondent is a [NAME_3] representing a substantial number of members in the UK in the education and training sectors.

12. [NAME_9] was a branch secretary with the Respondent assigned to the [COMPANY_4] branch. This was a voluntary role. She was also employed as a teacher at the [COMPANY_4]. The role of branch secretary included giving members guidance on employment law advice (“casework”). [NAME_9] had been given some training in this role, and had undertaken it for 12 years at the date of these events, she is not legally qualified and undertook the role in a voluntary capacity. It was the practice of the Respondent that [NAME_1] work be referred up to [NAME_30] – who were persons employed by the Respondent at regional level. [NAME_14]’s had more experience and training in casework and could provide a greater level of advice and guidance that Branch Officers.

13. [NAME_9] had limited dealings with the Claimant until March 2022, but had met her previously as she had provided cover for some of [NAME_9]’s lessons while off sick.

14. [NAME_11] was an [NAME_14] for the Respondent’s [NAME_15]. He did not know the Claimant and had never met her. He in fact only communicated with her during the matters giving rise to these proceedings by email. He did not know her race.

15. On 14 March 2022 the Claimant wrote to [NAME_9] stating that she had been sacked on Friday from the [COMPANY_4] by a person called [NAME_12]. In a subsequent phone call with [NAME_9], evidenced in a later email dated 21 March 2022 from [NAME_9] to [NAME_11], she told [NAME_9] that [NAME_12] came to her desk and told her to leave immediately because she was violent and a danger to students. She

[NAME_1] No: 2404995/2022 was escorted out of the building because she had raised her voice. The Claimant said she felt she had been discriminated against because of her race.

16. [NAME_9] sought a timeline from the Claimant to send to [NAME_11].

17. On 16 March the Claimant sent the requested timeline. The timeline alleged that the Claimant had been discriminated against and included what was said to be events leading up to her discriminatory dismissal. [NAME_9] agreed to send the timeline on to [NAME_11].

18. On 19 [NAME_9] also asked the Claimant to send her a copy of her contract of employment which she would also send on to [NAME_11].

19. On 21 [NAME_9] sent a copy of the contract of employment to [NAME_11]. [NAME_9] also wrote an e-mail to [NAME_11] summarising her understanding of the position with the claimant. The letter stated

“Our member, [NAME_2] ([NAME_2]), a trainee lecturer in [NAME_16] in her probationary year (contract attached) was summarily dismissed on Friday 11/03/22 and has provided a timeline which I'm currently trying to make sense of. [NAME_2] feels that she has been discriminated against because of her race. I can't find any direct evidence of this and fear that because of her status as a trainee teacher there will be little we can do for her”.

The reference to [NAME_9] saying there was little the union could do for her related to her understanding that the Claimant did not have two years qualifying service in order to bring an unfair dismissal claim. The Tribunal does not conclude that [NAME_9] had rejected out of hand any possibility that the Claimant could in fact have been the victim of unlawful discrimination. She was keeping an open mind.

20. On 22 March the Claimant spoke to [NAME_9]. [NAME_9] said she needed to speak to [NAME_11] before advising but doubted the claimant had an unfair dismissal claim due to her probationary status.

21. On 23 [NAME_9] tried to speak to [NAME_11] but he was off sick. On the same day the Claimant wrote to [NAME_9] stating that the [COMPANY_4] had blocked all her emails and that she could not even e-mail to ask for a subject access request (SAR). [NAME_9] replied by saying that as her [NAME_3] representative she was pretty sure she could ask on her behalf. In fact the Tribunal finds that it would not be usual for a [NAME_3] representative to seek a SAR on behalf of one of its members. There was certainly no requirement for [NAME_9] to do so and by offering to put in such a request on her behalf [NAME_9] was going beyond what was necessary in her capacity as the Claimant’s representative.

22. Over 24 and 25 March the Claimant sent multiple requests to [NAME_9] to send [NAME_17] on her behalf seeking CCTV footage featuring the Claimant. [NAME_9] submitted 7 SAR requests to the [COMPANY_4] on the Claimant's behalf on 24 March and sent the Claimant the [COMPANY_4]’s data protection policy. The Claimant in fact sent 10 emails to [NAME_9] on 24 March. In her last e-mail of the day the Claimant said she had another 8 SAR requests. On 25 March the claimant requested a further 4 [NAME_17] be sent by [NAME_9] on her behalf. Dealing with the Claimants [NAME_1] No: 2404995/2022 requests it became clear was becoming an unreasonable administrative burden on [NAME_9] who, as it is already stated, was acting in a volunteer role and had other paid teaching duties in addition to her [NAME_3] position. [NAME_9] asked the Claimant to send a collated request encompassing all her requests in an e-mail direct to the data controller or to herself who would then forward them on. The Claimant sent a collated request to [NAME_9] who forwarded the request to the [COMPANY_4].

23. On 28 [NAME_11] had a telephone discussion with [NAME_9]. The contents of the phone call were evidenced in an e-mail of the same date. [NAME_11] noted that the [COMPANY_4] had not formally explained the Claimant’s circumstances and it was not clear whether she had been suspended or dismissed or neither. The e-mail stated that the employer cannot maintain that there was a dismissal following a disciplinary process without some written notice of the disciplinary hearing, a formal hearing being convened and a written notice of the outcome of that hearing. In oral evidence [NAME_11] stated, and the Tribunal accepts, that while he was aware that it was possible to dismiss someone without any written confirmation of such, in his experience it was rare, and for an employer the size of the [COMPANY_4] extremely rare. Accordingly he wrote, and in the Tribunal’s view was entitled to write, that without written notice of suspension or termination the Claimant should assume that she was neither suspended nor dismissed.

24. The e-mail went on to state that the employer needed to make their position clear. He suggested the Claimant write to the employer in the following terms: ‘I understand that I am considered to have been on special paid leave since 11 March 2022. I am now serving you notice that I will return to full duties on Monday 4 April unless advised otherwise’.

25. He went on to state “If she receives a phone call from the employer she should refuse to discuss any details, refer to her email and request a written response. If she receives no response she should return to work on Monday 4 April”.

26. The purpose of writing such a letter was to require the employer to confirm what the position was with the employment status of the Claimant. The Tribunal does not find that this letter objectively viewed could be seen to cast doubt on the Claimants version of events that had been given to [NAME_9] nor did it undermine any assertion that the Claimant had been discriminated against. Given the lack of written confirmation emanating from the [COMPANY_4] the Tribunal finds it was reasonable of [NAME_11] to suggest the Claimant write such a letter. [NAME_11] indicated that it was what he described as a “tactic” that he had employed on a number of other occasions for other members in similar circumstances. [NAME_11] did not doubt the Claimant’s version of events, he was keeping an open mind. He was however trying to preserve the Claimant’s position legally.

27. On same date [NAME_9] wrote an e-mail to the claimant copying in [NAME_11]. This followed on from a telephone call that the claimant had had with [NAME_9]. The e-mail is lengthy and covers a number of different topics. [NAME_9] indicated to the claimant that the Respondent would not be able to represent her if she had already instructed a solicitor or barrister. The Tribunal finds that this advice was correct and in accordance with the Respondent’s policies which precluded the Respondent from providing legal advice in those circumstances. There was discussion about SARS. [NAME_9] asked for any additional SAR to go in one consolidated SAR and that she would discuss with Mr

[NAME_1] No: 2404995/2022 [NAME_11] submitting it. [NAME_9] also said that she had discussed her [NAME_1] with [NAME_11] and that she should write a letter to her employer in the terms that [NAME_11] had suggested. If she was to receive no response she should return to work on Monday 4 April. If the employer confirmed that she was dismissed then the Claimant may have a claim for wrongful dismissal with a compensation payments of one month. The letter also refer to an ACAS form that the claimant had completed which indicated discrimination in respect of her termination.

28. Finally, the e-mail referred to a photo of a letter that the Claimant had sent [NAME_9]. That letter was from the [COMPANY_4] but refer to the claimant being removed from the PGCE course. Having reviewed the letter the Tribunal is satisfied that that is not a letter of dismissal but a letter confirming the Claimant was to be removed from that course.

29. The Claimant wrote multiple emails to [NAME_9] that day some of which were sent late at night. The Claimant indicated that she would not follow the advice being provided by [NAME_11] because she did not want to go back to work, she was dismissed. In fact the Claimant misunderstood the advice being provided to her. In absence of written evidence of dismissal or suspension the Claimant was being advised to write to her employer in order to get them to set out the position.

30. On 29 March both [NAME_9] and [NAME_11] communicated with the Claimant in an attempt to explain the strategy being adopted on the purpose of writing the letter to the employer. [NAME_9] wrote in an e-mail “the advice we have given is designed to prompt the [COMPANY_4] into putting something in writing to you about the reasons for your dismissal. They're unlikely to want you to turn up in [COMPANY_4] and will most likely respond to that effect. The written evidence is what we need to go forward with your [NAME_1]”. [NAME_11] asked the claimant to “hold off commencing early conciliation prior to discussion as this will allow more time to take advice and prepare and a necessary legal submissions”. Additionally, in a separate e-mail [NAME_11] stated that as the employer hadn't formally explained the circumstances unless the [COMPANY_4] confirmed it in writing she was considered not to be dismissed. It went on to state “we need the employer to make their position clear without you legitimising a dismissal by writing to ask for your job back”.

31. The Claimant wrote an e-mail to [NAME_11] stating that she had had legal advice. [NAME_11] responded that the respondent would not advise her further if she was taking legal advice. As previously indicated that response conformed with the rules of the Respondent’s scheme. The Respondent does not provide legal assistance to members who are in receipt of legal advice from a professional advisor separately. The Claimant responded to [NAME_18] suggesting that he was lying to her. She wrote separately to [NAME_9] stating “I am not sure why [NAME_11] is lying to me” and suggesting she was being asked to send emails under duress. The suggestion that [NAME_11] was lying was baseless, as was the suggestion that was she was asked to send emails to her employer under duress.

32. [NAME_11] later in the day confirmed the Respondent could not advise the Claimant if she was taking alternative legal advice. Mr. [NAME_18] indicated that if the Claimant wished to take an initial legal opinion on the prospects of a tribunal claim she could make an application under the Respondent’s legal scheme. To do this she needed to provide [NAME_11] with a numbered narrative with reference to an appendix to allow him to consider the evidence before making a decision on

[NAME_1] No: 2404995/2022 whether to support referral to the legal scheme. He attached the scheme rules and guidance to the e-mail. On 30 [NAME_11] confirmed that the application had to be sent to him and that he might suggest amendments or request particular evidence. If he thought it had merit he would arrange for a solicitor to be assigned to offer a legal opinion. The Claimant despite receiving this information and indicating she would consider doing so, did not make such an application at any time.

33. Had the Claimant been dissatisfied with the decision of [NAME_11] in respect of referral to the legal help scheme she could have sought a review under the scheme which would have been conducted by someone independent of [NAME_11]. Although she had no reason to believe [NAME_11] would not conduct a fair assessment of her [NAME_1] this should have provided her with confidence in the scheme.

34. There was a pause in the communications between the Claimant and [NAME_9] and [NAME_11] until 6 April. On 6 April the Claimant wrote to both asking if they had sent the SAR request. [NAME_11] responded on the same day providing advice again about submitting a request for legal support through the respondents legal scheme and providing advice on limitation to bring a claim. In respect of the SAR he stated that the claimant should submit the SAR herself stating “it is your data and your request”. [NAME_11] did provide a template request letter which it was suggested that the Claimant strictly adhere to. For the avoidance of doubt the Tribunal is satisfied that that was all [NAME_11] was required to do in his role as a regional support officer.

35. On 7 April the Claimant wrote to [NAME_9] without copying in [NAME_11]. She asked if [NAME_9] had sent the second SAR request to Philip or if not, if she was not going to do it. This was a deliberate attempt on the part of the Claimant to bypass [NAME_11] who had already given her an answer in respect of the SAR position so far as the Respondent was concerned.

36. On 8 [NAME_9] replied stating correctly that [NAME_11] had already answered the question in a previous e-mail stating that the Claimant should submit the saw herself. The e-mail also stated that “I note that [COMPANY_19] data protection officer emailed you on the 24 March and 25 March so you should have no trouble submitting your request. I was happy to help you contact him initially but you should do so yourself now”. This reply was appropriate from [NAME_9] and represented all that she needed to do.

37. It seems that the [COMPANY_4] may have refused to have provided some of the CCTV based on how long the footage was stored under its policy. The Claimant had been provided with the policy and the Respondent could not, and was not required to be, involved in a dispute about whether the SAR was being properly complied with or not.

38. The Claimant complained to the Respondent’s president who considered her complaint and rejected it in writing and then to the Tribunal about the conduct of [NAME_9] and [NAME_11].

[NAME_1] No: 2404995/2022 The Law Direct race discrimination 39. Protection against direct discrimination is provided for at s.13 of the Equality Act 2010: A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

40. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

41. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, it was said that the real question in direct discrimination cases was “what, consciously or unconsciously, was the [alleged discriminator's] reason”. Unlike causation, the Court considered, that question required a subjective test. Causation is a legal question whereas a respondent's reasons for action are a question of fact.

42. Direct evidence of discrimination is rare and a tribunal must consider the possibility of unconscious discrimination by carefully examining the surrounding circumstances and drawing inferences where appropriate.

Victimisation

43. In respect of victimisation EqA 2010, s 27(1) provides: '“A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”' “Protected act” is defined at EqA 2010, s 27(2): '“Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act”.'

44. The employer or in this [NAME_1] union must subject the employee to a detriment “because” the latter has performed a protected act. The language used in EqA 2010, s 27 matches that in the definition of direct discrimination at s.13. It follows, therefore, that, the protected act has to be an effective cause of the employer's detrimental actions but does not have to be the principal cause.

[NAME_1] No: 2404995/2022 45. The threshold for what constitutes a detriment is a low one, the test being simply whether the treatment is of such a kind that a reasonable worker would or might take the view this is to their detriment- see [NAME_20] v [NAME_20] of Northamptonshire Polic (2022) EAT 22.

Harassment relating to a relevant protected characteristic EqA 2010, s 26(1) provides that: '“A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”'

46. Harassment, is a form of conduct. It must be unwanted; it must relate to a protected characteristic; and it must either have the purpose or the effect of creating what is referred to as an “adverse environment”.

47. The words ‘related to’ in S.26(1)(a) have a broad meaning and holding that conduct that cannot be said to be ‘because of’ a particular protected characteristic may nonetheless be ‘related to’ it — [NAME_21] v [NAME_21] Office Services 2016 ICR D17, EAT. The EHRC code of practice on employment at paragraph 7.10 states that protection from harassment also applies where a person is generally abusive to other workers but, the form of the unwanted conduct is determined by that workers protected characteristic.

The Burden of Proof

48. Section 136 of the Equality Act 2010 provides:

(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

49. S.136 creates a 2 stage process. In the first stage the employee must prove facts from which the employer could conclude, in the absence of an adequate explanation that the employer committed an unlawful act of discrimination. The Tribunal must ignore any explanation given by the Respondent at this stage. If there is a prima facie [NAME_1] of discrimination the burden then shifts to the employer to provide a non-discriminatory explanation for the difference in treatment. Unreasonable treatment alone is usually insufficient to draw an inference of discrimination.

S.57 Equality Act

50. Finally as the Tribunal indicated this is a claim against a [NAME_3] by one of its members. This is the provision that makes it unlawful for a [NAME_3] to directly

[NAME_1] No: 2404995/2022 discriminate, harass or victimise its members or prospective members. The provision addresses unlawful discrimination. Poor service or negligent representation by a union is not per se contrary to this section- [NAME_22], Timber and Allied Trades Union v Modgill [1980] IRLR 142, EAT. That said, in appropriate circumstances it may give rise to an adverse inference of discrimination.

Conclusions

51. Applying the law to the facts the Tribunal concludes as follows.

42.0.1 [NAME_10] assisted the [COMPANY_4] by misrepresenting the dismissal and thereby failing to identify the [COMPANY_4]’s discriminatory acts; 42.0.2 [NAME_9] diminishing the [COMPANY_4]’s discriminatory behaviour by the [COMPANY_4] in dismissing the claimant;

52. The Tribunal is not of the view that [NAME_9] or [NAME_11] misrepresented the dismissal or diminished the [COMPANY_4]’s discriminatory behaviour. [NAME_11] was presented with limited information. As would normally be expected from an employer the size of the [COMPANY_4] there was no documentary evidence of a disciplinary procedure being implemented, no evidence of suspension on any terms and no documentary evidence of a dismissal. The advice to write a letter to the employer in the terms that he did (advice of which was then adopted by [NAME_9]) was a reasonable and rational approach in the circumstances. It would, or may have caused the employer to formalise the Claimant’s employment status in writing and potentially to preserve her position as to pay. The rationale was explained to the Claimant. While other options were available, such as [NAME_9] informally raising with her employer the Claimants [NAME_1] and seeking clarification herself, that does not of itself mean the option suggested by [NAME_11] could be criticised.

53. Likewise, the fact that [NAME_9] suggested in correspondence that the Claimant was unlikely to have an unfair dismissal claim but may have a claim for breach of contract was not unreasonable in the circumstances. [NAME_9] is not legally qualified and had limited information at the time. The lack of 2 years qualifying service would indeed preclude the Claimant from bringing an unfair dismissal claim under s.98 ERA. [NAME_9] said or did would prompt a reasonable [NAME_3] member into thinking that a claim for race discrimination was being discounted or their version of events disbelieved.

54. Even if, contrary to the above, the Tribunal ought to have concluded that the terms of the letter being suggested by [NAME_11] and then [NAME_9] was a detriment to the Claimant, the Tribunal is quite satisfied it had nothing whatsoever to do with the Claimant’s race. [NAME_11] was unaware of her race having never met her. He had suggested this form of correspondence on other occasions for other members in similar circumstances. Accordingly the claim for direct discrimination on these grounds fail.

42.0.3 Doing nothing about the [COMPANY_4] refusing to provide CCTV recordings requested in a SAR made by [NAME_9] on the claimant’s behalf.

[NAME_1] No: 2404995/2022

55. There is no question that the Respondent did nothing in respect of the Claimant’s SAR request. [NAME_9] initially submitted a significant number of [NAME_17] on the Claimant’s behalf. She advised the Claimant to consolidate multiple requests into a single document. There was discussions about who to direct the SAR to at the [COMPANY_4] and the Claimant was provided with a template request form to assist her. This was all the Respondent was required to do.

Accordingly, the Tribunal does not find that the Claimant suffered any detriment by being required to submit the [NAME_17] herself.

56. The Respondent was not in a position to force the [COMPANY_4] into responding to the SAR requests. It did all it was required to do.

57. Even assuming that, having initially agreed to submit [NAME_17] on her behalf, by subsequently requiring her to submit them herself the Claimant has been subjected to a detriment, the Tribunal is quite satisfied that the reason was nothing whatsoever to do with her race. The volume of queries and requests that were being sent, often at unsociable hours, caused [NAME_9] initially to ask the Claimant to submit them herself. [NAME_11] was of the view that it was not the role of the [NAME_3] to submit [NAME_17] on any members behalf and this was then adopted by [NAME_9].

Accordingly, the claim for direct discrimination also fails on this ground.

42.1.1 [NAME_9] and [NAME_11] giving the claimant advice which did not accurately reflect the claimant’s situation.

58. This is essentially already addressed by the Tribunal. The advice that was given was not inconsistent with the facts as the Respondent knew them at the material time. Nothing the Respondent did could be viewed as suggesting that they disbelieved the Claimant in respect of alleged racial discrimination or the circumstances of her removal from the [COMPANY_4]. This of course contrasts with the Claimant’s approach to [NAME_11] who she had suggested was being untruthful. The advice given certainly did not have the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claim for harassment on this ground fails.

42.1.2 Treatment by [NAME_11] in stating the respondent would not advise her further if she was taking legal advice elsewhere.

59. [NAME_11]’s communication with the Claimant indicating that the [NAME_3] would not provide advice to her if she was in receipt of separate legal advice from another source accorded with the Respondent’s legal help scheme. It was prompted by the Claimant indicating that she had received legal advice from elsewhere. In fact it was the same or similar advice she had received from [NAME_9]. [NAME_11] did not state that the Respondent had made a decision not to provide advice, merely that it would not if she in fact was receiving legal assistance elsewhere. Accordingly nothing [NAME_11] did in this regard had the purpose or effect of violating the Claimant’s dignity, or creating an intimidating,

[NAME_1] No: 2404995/2022 hostile, degrading, humiliating or offensive environment for her. The claim for harassment on this ground fails.

42.2.1 [NAME_9] and [NAME_11] giving the claimant advice which did not accurately reflect the claimant’s situation.

42.2.2 [NAME_11]’s unwillingness to assist the claimant in her SAR In his email of 6 April 2022.

42.2.3 [NAME_9]’s treatment of the claimant by declining to assist her further with her SAR as expressed in an email of 8 April 2022.

60. The Tribunal has already addressed these claims essentially earlier on. The Claimant telling [NAME_9] in a telephone conversation on 14 March 2022 that her Manager, [NAME_13], had discriminated against her by dismissing her was, it is accepted, a protected act within the meaning of the legislation. However the decision not to submit the Claimant’s [NAME_17] on her behalf was not a detriment to her, and if it was it had nothing whatsoever to do with the Claimant telling [NAME_9] in a telephone conversation on 14 March 2022 that her Manager, [NAME_13], had discriminated against her by dismissing her.

61. Likewise the advice did accurately reflect the Claimant’s situation as the Respondent knew it, or at least was not inconsistent with it. The advice to write the letter in the terms that [NAME_11] did, and the preliminary advice in respect of a lack of a claim for unfair dismissal but a possible claim for wrongful dismissal was not a detriment to the Claimant or if it was had nothing whatsoever to do with the Claimant telling [NAME_9] in a telephone conversation on 14 March 2022 that her Manager, [NAME_13], had discriminated against her by dismissing her.

62. For these reasons the claims for victimisation also fails and is dismissed.

Employment Judge

31 January 2025

__________________________________

Date: 10 February 2025

JUDGMENT & REASONS SENT TO THE PARTIES ON

........................................................................................

FOR THE TRIBUNAL OFFICE

[NAME_1] No: 2404995/2022 Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a [NAME_1].

Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

[NAME_1]: 2404995/2022

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

On: 21 November 2025

Before: Employment Judge Serr, [NAME_5], [NAME_6] Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

1. The Respondent’s application for costs under Employment Tribunal Rule 73 (1) (a) is well founded and succeeds.

2. The Claimant shall pay the Respondent’s costs assessed under Tribunal Rule 76 (1) (a) in the sum of £19 000.

REASONS

Introduction 1. The Claimant was a member of the [NAME_3]. She brought claims for race discrimination, harassment and victimisation against the Respondent under s.57 Equality Act 2010. By a decision dated 31 January 2025 (“the liability judgment”) the Tribunal dismissed all of the Claimant’s claims. The reasons for doing so are fully set out in the decision of the Tribunal and are not repeated at any length in this decision.

2. The Claimant appealed the liability judgment of the Tribunal to the Employment Appeal Tribunal (“EAT”). By a decision dated 1 July 2025 the EAT under Rule 3 (7) of the EAT Rules indicated that the appeal disclosed no reasonable grounds for bringing the appeal. The Claimant has subsequently sought an oral hearing under Rule 3 (10) EAT Rules which has been listed for a hearing in October 2026.

3. The Claimant sought to have the Respondent’s application for costs adjourned until after the Rule 3 (10) hearing. The Tribunal refused and the EAT subsequently refused to interfere with the Tribunal’s [NAME_1] management decision by order dated 17 November 2025.

The Application for Costs 4. By a written application dated 10 March 2025 the Respondent made an application for costs under rule 74(2)(a) that the Claimant’s conduct in the bringing of proceedings and the way in which she conducted part of the proceedings was unreasonable and under rule 74(2)(b), that her claim had no reasonable prospect of success.

5. The Application was detailed. The basis of the application may be summarised as follows:

5.1 The Claimant had been warned on a number of occasions through costs warning letters that her claim had no reasonable prospect of success but she persisted. 5.2 She produced no evidence of even an arguable [NAME_1] of discrimination at any stage. 5.3 She was of a fixed mindset that her claim against the Respondent was linked with a claim against [COMPANY_4]. 5.4 She unreasonably failed to attend 2 days of the hearing. 5.5 The Claimant limited its claim to £20 000, despite the costs even at that stage being significantly excess of this figure.

6. There were other matters which the Respondent drew the Tribunal’s attention to which while not strictly a basis for the costs application under Rule 74, were it was said relevant to ‘stage 2’ of the application, that is whether if one of the thresholds to making a costs under Rule 74 is satisfied the Tribunal should go on to exercise its discretion to make such an order.

7. The Tribunal provided an opportunity for the Claimant to respond in writing. She responded on 7 April 2025. Again this was a lengthy and detailed document running to over 60 pages. The Tribunal considered this document with care.

The Procedure 8. The Tribunal was presented with an almost 500 page bundle. Even allowing for the additional material related to the Claimant’s means in the form of bank statements, this was excessive for a costs hearing.

9. The Tribunal had a skeleton argument from the Respondent and re-read the application and the Claimant’s written response to the application. [NAME_7] wished to ask the Claimant some questions on oath, largely related to her means. The Tribunal took the view this would be beneficial to the issues it had to decide and permitted limited cross examination.

10. The Tribunal heard oral submissions from both parties. The Tribunal took the provisional view that the key questions in the application were:

10.1On what basis did the Claimant think she had an arguable claim for discrimination, harassment and victimisation following the costs warning letters in August 2024 and then again on 10 and 14 January 2025?

10.2Why did the Claimant fail to attend two days of the listed hearing?

10.3What is the Claimant’s current financial position, and so far as possible to ascertain future financial prospects?

11. The Claimant’s lengthy written response to the application had largely failed to address these key questions (and had made a number of serious and baseless criticisms of [NAME_7]’s conduct). Applying the overriding objective under the Tribunal Rules the Tribunal sought to question the Claimant at some length to try and assist her in addressing the above crucial issues.

The Facts 12. The Tribunal made the following additional findings of fact relevant to the application: 12.1The Claimant is an intelligent and capable individual. She has a diploma in law and has undertaken legal work experience at [NAME_25]. 12.2The Respondent through its representative wrote 3 costs warning letters to the Claimant on 6 August 2024 and 10 and 14 January 2025. The first and last of the letters offered the opportunity to ‘drop hands’ with no costs consequences. 12.3The August letter pointed out that [NAME_9] and [NAME_11] on behalf of the Respondent provided the Claimant with accurate and correct legal advice as to the claims she could bring, or not bring, given her qualifying service with the [COMPANY_4] and the limited information she had provided. Her allegations against them were said to be baseless

and her schedule of loss had no basis in fact. In addition the Respondent pointed out that the Claimant had compromised matters by seeking her own legal advice while asking the Respondent to assist her. 12.4By early September 2024 the Claimant had received disclosure in the [NAME_1] from the Respondent. The disclosure exercise was concluded by on or around the end of September 2024. 12.5The Claimant failed to attend days 2 and 3 of the liability hearing because she says she had started a course and the induction session was on day 2 and the first lecture on day 3 (based on an anonymised email dated 24/1). She gave no information whatsoever to the course provider about the forthcoming hearing before the Tribunal, or made any inquiries about the possibility of catching up with the induction/lecture on another occasion. The Tribunal reject the assertion that she would have been removed from the course had she failed to attend the induction and/or the first lecture. Alternative arrangements would have most likely been put in place for her. 12.6The Claimant has, subsequent to the date of the liability decision, corresponded with [NAME_23] and the Tribunal in a highly intemperate and unreasonable fashion. She has asked inappropriate questions related to the lawyers families in March 2025, threatened to report [NAME_7] to the BSB without any proper basis in April 2025 and has intimated complaints about solicitors and counsel to their managing partners/head of chambers. 12.7The Claimant had a “barrister friend” who on 15 January 2025 sent her a costs judgment from the EAT. 12.8On 9 April 2025 the Claimant wrote to the Tribunal indicating that if the Tribunal was to ‘fix’ its liability decision she would withdraw any complaints made to external organisation about the Tribunal (which the Tribunal understand to be the Judge and members rather than the administrative team). There is no real way to read this correspondence other than as a threat. 12.9Determining with any accuracy the Claimant’s means was difficult as the Tribunal find the evidence she provided was partial and somewhat contradictory. Doing the best it can the Tribunal determined the following: 12.9.1 She has a part time role as a building surveyor for which she receives approximately £2 000 per month. She also undertakes a study programme. 12.9.2 She lives at home with her parents but spends days in London for both work and for social reasons. 12.9.3 She provides £60 a month ‘board’ and a maximum of £150 per month contribution to household groceries. 12.9.4 She has life insurance costs of £26 per month. 12.9.5 She asserted she spends £400 a month on petrol driving to London (for which she receives no expenses from her employer). This seemed very high but the Tribunal was prepared to accept it at face value.

12.9.6 She has a loan of approximately £20 000 and savings of approximately £8-10 000. She makes monthly payments of £507 per month funded at present by savings. 12.9.7 She pays for her own hotel accommodation in London. This costs can vary but the Tribunal saw one example of a hotel costing approximately £30 for the night. 12.9.8 The Claimant asserted that she only has £200 per month spare after her living costs. The Tribunal rejected this on the figures provided. Even assuming she funds the loan out of her monthly earnings and allowing for socialising and other unnamed expenses the Tribunal concludes the Claimant has approximately £700-£800 per month over and above her living costs. 12.9.9 She is well educated and has no obvious impediment to increase her earnings substantially over time.

The Law

13. The power to award costs is contained in Part 13 of the 2024 Tribunal Rules of Procedure.

14. Rule 73(1) provides that a Costs Order includes an order that a party makes a payment to another party “in respect of the costs that the receiving party has incurred while represented by a legal representative”.

15. The circumstances in which a Costs Order may be made are set out in rule 74. It states so far as is relevant:

74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success

16. The EAT recently considered the decision to award costs in the context of a discrimination claim brought by an unrepresented party in Madu v Loughborough College (2025) EAT 52. While not immune from costs orders, the fact that a party is a litigant in person will often be relevant to determining an application for costs. The question of whether a complaint had no reasonable prospects of success is wholly objective. However, the fact that a litigant acts in person may be relevant to whether he has acted unreasonably in pursuing the complaint. In many discrimination complaints the outcome turns on the Employment Tribunal deciding whether the claimant’s treatment was materially influenced by the relevant protected characteristic. Much may turn on the performance of the person(s) alleged

to have discriminated against the claimant under cross-examination. It can be difficult for a claimant, especially if acting in person, to form a clear view of the likely prospects of success prior to the hearing and the Tribunal must bear this in mind.

17. The procedure by which the costs application should be considered is set out in rule 75 and the amount which the Tribunal may award is governed by rule 76. In summary rule 76 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000, or alternatively to order the paying party to pay the whole or specified part of the costs with the amount to be determined following a detailed assessment.

18. Rule 82 concerns ability to pay and reads as follows: “In deciding whether to make a costs order, preparation time order or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representative’s) ability to pay.”

19. It follows from these rules as to costs that the Tribunal must go through a three stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage.

20. The [NAME_1] law on the costs powers include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82.

21. If there has been unreasonable conduct there is no requirement for the Tribunal to identify a precise causal link between that unreasonable conduct and any specific items of costs which have been incurred: McPherson v BNP Paribas (London Branch) [2004] ICR 1398. However there is still the need for some degree of causation to be taken into account as the Court of Appeal pointed out in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78:

“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the [NAME_1] and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the [NAME_1], and in doing so to identify the conduct, what was unreasonable about it and what effects it had.” 22. A well-argued warning letter can provide a basis for an order for costs if the recipient has unreasonably failed to engage properly with the points raised: Peat v Birmingham City Council UKEAT/0503/1.

23. As to the question of means or ability to pay, in [NAME_24] v London Borough of Lewisham & Others (No. 2) [2013] IRLR 713 the EAT said this in paragraph 28:

“The starting point is that even though the Tribunal thought it right to ‘have regard to’ the appellant’s means, that did not require it to make a firm finding as to the maximum that it believed she could pay, either forthwith or within some specified timescale, and to limit the award to that amount. That is not what the rule says (and it would be particularly surprising if it were the [NAME_1], given that there is no absolute obligation to have regard to means at all). If there was a realistic prospect that the appellant might at some point in the future be able to afford to pay a substantial amount it was legitimate to make a costs order in that amount so that the respondents would be able to make some recovery when and if that occurred….It is necessary to remember that whatever order was made would have to be enforced through the County Court, which would itself take into account the appellant’s means from time to time in deciding whether to require payment by instalments, and if so in what amount”.

Conclusions Stage 1 The Statutory Thresholds 24. The Tribunal considered whether the application passed the threshold under Rule 74 (2)(b) no reasonable prospect of success. The Tribunal considered whether the claim objectively viewed had no reasonable prospect of success and whether the Claimant in fact appreciated that it had no reasonable prospects of success, and if not should she have done.

25. The Tribunal found in the liability judgment that the Respondent had never discounted the possibility of the Claimant being the victim of race discrimination by her employer and nor could she have ever reasonably thought that it had, and gave her reasonable advice in the circumstances. It never gave her the impression it disbelieved her and nor could she ever have thought that it did. It was under no obligation to assist her in submitting [NAME_17] to the [COMPANY_4] but nevertheless did provide her with assistance. It later asked her to send them herself as her requests were becoming too onerous. It gave her entirely correct advice indicating that the [NAME_3] would not provide advice to her if she was in receipt of separate legal advice from another source.

26. The Tribunal sought to understand why the Claimant had thought she had a claim of discrimination, harassment and victimisation against the Respondent at any point. Her answers to the Tribunal were largely unsatisfactory in persuading it that, even taking into account that she was unrepresented and this was a discrimination claim, she had any reasonable grounds for even a suspicion of discrimination, harassment and victimisation. She said she thought she was discriminated against because she wasn’t believed by the Respondent when she said she had been dismissed by [COMPANY_4] but the Tribunal concluded she could never have reasonably thought that. She said she thought that she was being given inaccurate advice but in fact not only was the advice given accurate, there was nothing that could have ever made her think it was not. The Claimant continued to assert that her claim against [NAME_3] and [COMPANY_4] were linked, however the Tribunal had determined before the start

of the hearing they were not and in any event by the time of the hearing she had already had the judgment in her claim against the [COMPANY_4] in which she was unsuccessful.

27. In only one respect was the Tribunal satisfied that she arguably was not unreasonable in concluding that her claims had a reasonable prospect of success on presentation of the claim and when the first costs letter was written in August 2024. She said that she thought that [NAME_11] may have influenced [NAME_9] into changing her mind about assisting with the [NAME_17]. The Claimant never met [NAME_11] and the Tribunal found he did not know her race. Most of the communications in this [NAME_1] were via email which so far as she was included in would have been in her possession on presentation of the claim. While the purpose of disclosure is not as a fishing expedition to make a [NAME_1] for a party, the Tribunal is prepared to accept that prior to disclosure the Claimant could not be entirely satisfied that something else had not passed between [NAME_9] and [NAME_11] that suggested at least an inference of discrimination. However, following disclosure the Claimant had all correspondence passing between not only herself but solely between [NAME_9] and [NAME_11] (of which there was almost none). Following disclosure the Claimant could not have reasonably held the view that she had any reasonable claim for discrimination, harassment or victimisation.

29. Accordingly from late September 2024 the threshold under Rule 74 (2) (b) is met.

30. The Tribunal also considered that the threshold under Rule 74 (2) (a) was met so far as the Claimant failed to attend for two days of the hearing. The Claimant had no good excuse for not attending her own claim which had been fixed for 8 months. She made no attempts to explain the position to her course provider and never explored whether in fact she could catch up with the missed induction and lecture. Simply not attending in the circumstances was seriously discourteous to the court, unfair on the Respondent’s witnesses who had had allegations of discrimination against them for a number of years and clearly significantly reduced the prospects of succeeding in her claims.

Stage 2

The Discretion to award Costs 31. It is not enough for the statutory threshold to be met, the Tribunal must still consider whether to exercise its discretion to award costs. This is multi factorial and necessarily may include factors such as whether the Claimant was represented, whether she had access to advice, her conduct generally and her financial means.

32. The Tribunal notes that she was a litigant in person and this was a discrimination claim. Nevertheless it has decided to exercise its discretion to award costs in favour of the Respondent.

33. The Tribunal considers the following:

33.1The claimant has legal qualifications and has undertaken work experience in [NAME_25]. 33.2The claim was directed against a teaching colleague who she had only had limited interaction with and was acting in a voluntary capacity to try and assist her, and someone she had never met. 33.3She had access to at least some informal legal advice as recorded in the liability decision and during the costs proceedings. 33.4 She was warned though a costs warning letter on three occasions and had the opportunity to withdraw her claim. A number of the assertions made in the August letter were found as a fact in the liability decision. 33.5 The Tribunal finds that the Claimant had a fixed mindset. She simply would not countenance the possibility that she had not been discriminated against irrespective of the evidence (or lack of it). 33.6 She must have appreciated not attending the hearing would make succeeding extremely difficult. The Claimant failed to produce a witness statement although the Tribunal made adjustments to allow her evidence in another format. 33.7The Claimant’s conduct post the liability decision has been seriously unreasonable including a threat to the Tribunal. 33.8The Claimant has some but not unlimited means at present, but she is in work, has limited expenses as she lives at home and clearly an increased earning capacity in the future.

Stage 3

Quantum

34. The Respondent seeks costs under Rule 76 (1) (a). This necessitates a broad brush assessment limited to a maximum of £20 000.

35. The Respondent asserted that its costs were at date of the costs hearing in excess of £56 000. It only sought costs up to the date of the costs application. It provided schedules with a break down as the authorities suggest a receiving party should. The Tribunal was broadly satisfied with the rates claimed.

36. The summary attached to the schedule shows a figure of £39 697.92 and the Tribunal has worked to that summary while considering the detailed breakdown.

37. The Tribunal has found that costs are payable from late September (allowing for the Claimant to at least consider the disclosure sent on or around 9 September). That then precludes £7 897 from presentation to the August costs warning. The next figure is £15 234.72 accrued from the August costs warning to the second costs warning in January 2025. This will by necessity have included the disclosure exercise which is likely to form a substantial part of the costs and which are not on the Tribunal’s findings recoverable. The Tribunal allows £7 000 for this period.

38. There is then another £7 565 claimed in solicitors fees until the hearing itself. This seemed on the high side to the Tribunal as most of the work ought to have been done by January. The Tribunal accepts that the Claimant was being uncooperative as evidenced by her failure to exchange witness statements which will have increased the costs somewhat. The Tribunal allows £3 000 for this period.

39. Counsels fees were claimed at £9 000 being £5 000 and refreshers of £1250 per day. These fees are reasonable in the circumstances and are allowed in full.

40. Accordingly the Tribunal assesses the costs liability as £19 000. While the Claimant’s means are such that this will represent a substantial debt that will no doubt take some time to meet, the Tribunal is satisfied that her means are not a reason to reduce the amount further.

Approved by:

Employment Judge SERR 26 November 2025

JUDGMENT SENT TO THE PARTIES ON 13 January 2026

FOR THE TRIBUNAL OFFICE

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

[NAME_1]: 2404995/2022

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT The claimant’s application dated 26 January 2026 for reconsideration of the judgment sent to the parties on 13 January 2026 is refused.

REASONS

1. I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment of the Tribunal awarding the Respondent costs in the sum of £19 000. That application was made by way of email dated 26/1/26. Attached to that email was some additional documents including from the claimant’s former school [COMPANY_26], the SRA code of conduct and a [NAME_27] document about gathering evidence about discrimination at work. The claimant also resent her original response to the costs application, dated 7 April 2025

The Law 2. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68).

3. Rule 70(2) of the 2024 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

4. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v [NAME_20] and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that:

“the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier [NAME_1] law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

5. Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” 6. In Ebury Partners UK Limited v David [2023] EAT 40 the EAT put it this way in paragraph 24: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his [NAME_1], the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the [NAME_1] where the error alleged is one of law which is more appropriately corrected by the EAT.” 7. In common with all powers under the 2024 Rules, preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective which appears in rule 3, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. Where a party has raised arguments, or had a reasonable opportunity to raise them, it will not generally be in the interests of justice to grant them a second such opportunity.

The Application

8. The Tribunal has done its best to discern the nature of the claimant’s challenge to the judgment sent to the parties in January 2026. This has not been an easy task. Many of the documents relied on seem to have no applicability to the costs judgment at all. There is no specific challenge to any finding of the Tribunal which formed part of the costs judgment (at least not one that can be discerned). The claimant does not seem to assert that the Tribunal made an error of law in its approach to determine the application. The claimant brings no new relevant evidence that was not formerly available to her at the last hearing, which it could be said may have a bearing on the decision. The gist of the application seems to be that the original liability hearing should not have been determined until the claim in respect of [COMPANY_4] was concluded, and that the costs hearing should not have been determined while there were appeals outstanding against the decision of the Tribunal in respect of the claims against [NAME_3] and [COMPANY_4].

9. This is a matter that has been canvassed and determined both in the original liability judgment [paragraphs 4-8] and in the costs judgment [paragraphs 2-3]. In that sense this application represents a “second bite at the cherry”.

Conclusion

10. Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused.

Approved by:

Employment Judge SERR

22 February 2026

JUDGMENT SENT TO THE PARTIES ON

16 April 2026

FOR THE TRIBUNAL OFFICE